Marriage (In)equality and the Historical Legacies of Feminism

In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage. Obergefell obliquely acknowledges marriage equality’s debt to the first legacy without explicitly adopting sex equality arguments against same-sex marriage bans. The legacy of feminist campaigns for nonmarital equality, by contrast, is absent from Obergefell’s reasoning and belied by rhetoric that both glorifies marriage and implicitly disparages nonmarriage. Even so, the history of transformational change invoked in Obergefell gives us reason to hope that marriage’s privileged legal status may not be impervious to challenge

The Critical Role of History after Dobbs

The Dobbs majority’s reliance on a flawed and impoverished account of “history and tradition” to deny fundamental freedoms today may tempt us to despair of appealing to the past as a source of constitutional rights or principles. But the problem with Dobbs is not its discussion of history per se; rather, it is how and for what purposes the Court looks to the past. History need not preserve archaic values; it can counsel against past errors and justify affirmative approaches to protecting rights and combating inequality. This essay explores critical roles for history in legal, constitutional, and political arguments about reproductive freedom and democracy after Dobbs. These critical approaches define differently the historical voices and sources that matter; the constitutional principles and lessons to be drawn from the past; and the roles that history and tradition should play in shaping our present and future. Critical histories read the Reconstruction Amendments as a mandate for emancipation and for the eradication of all forms of bodily and reproductive coercion. They elevate the voices of those who long were excluded from political participation and place abortion restrictions in a longer history of reproductive control and anti-democratic political traditions. Critical histories can and do inform the interpretation of state as well as federal constitutional provisions in and outside of court. From courtrooms, legislatures, and campuses to workplaces, street protests, and dinner tables, these histories play a more crucial role than ever in informing legal and political discourse about reproductive justice and the future of democracy

The Strange Career of Jane Crow: Sex Segregation and the Transformation of Anti-Discrimination Discourse

This article examines the causes and consequences of a transformation in anti-discrimination discourse between 1970 and 1977 that shapes our constitutional landscape to this day. Fears of cross-racial intimacy leading to interracial marriage galvanized many white Southerners to oppose school desegregation in the 1950s and 1960s. In the wake of Brown v. Board of Education, some commentators, politicians, and ordinary citizens proposed a solution: segregate the newly integrated schools by sex. When court-ordered desegregation became a reality in the late 1960s, a smattering of southern school districts implemented sex separation plans. As late as 1969, no one saw sex-segregated schools as posing a constitutional sex discrimination problem; the only question judges asked was whether the sex separation schemes were motivated by “racial discrimination” or by “legitimate educational purposes.” Legitimate educational purposes included bolstering boys’ opportunities for leadership at girls’ expense, providing sex-specific curricula for boys and girls, and avoiding the “needless duplication” of athletic, vocational, and other facilities. During the 1970s, the women’s rights revolution transformed the legal discourse surrounding these “Jane Crow” cases. Advocates began to frame sex segregation as imposing a stigma and sense of inferiority on girls in a manner analogous to the effects of Jim Crow on African American children. This analogy-based sex discrimination paradigm became the principal framework for analyzing sex segregation, but it failed to capture what was at stake for white and black communities in the struggle over Jane Crow. The Jane Crow cases provide an alternative to the dominant Supreme Court narrative of sex segregation, shedding light on the complex historical relationship between race and sex inequality and on the consequences of framing constitutional equality harms in particular ways

A New E.R.A. or a New Era? Amendment Advocacy and the Reconstitution of Feminism

Scholars have largely treated the reintroduction of the Equal Rights Amendment (ERA) after its ratification failure in 1982 as a mere postscript to a long, hard-fought, and ultimately unsuccessful campaign to enshrine women’s legal equality in the federal constitution. This Article argues that “ERA II” was instead an important turning point in the history of legal feminism and of constitutional amendment advocacy. Whereas ERA I had once attracted broad bipartisan support, ERA II was a partisan political weapon exploited by advocates at both ends of the ideological spectrum. But ERA II also became a vehicle for feminist reinvention. Congressional consideration of ERA II forced feminists to rethink their objectives and strategies, and ultimately to reconstruct their legal and political agendas. Having achieved the eradication of most of the overt sex-based classifications that had been ERA I’s primary targets, amendment proponents focused on developing a coherent doctrinal approach to laws and policies that exerted a disproportionately negative impact on women. As they attempted to negotiate the competing demands of their own aspirations and a political climate hostile to the creation of new rights, women’s rights advocates confronted thorny constitutional questions, including the relationship between the ERA and abortion, private institutions, and affirmative action. The campaign for ERA II set the stage for a new phase in American legal feminism: one which aspired to substantive equality, recognized the limitations of amendment advocacy, and eschewed the expedient separation of reproductive freedom from constitutional sex equality. ERA II not only epitomized the scope and limitations of feminists’ success in transforming the law and of constitutional amendment advocacy as an instrument of change, but also laid the groundwork for a new era in feminist constitutionalism